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Mohammed Uddin, et al v. Alejandro Mayorkas

May 15, 2012

MOHAMMED UDDIN, ET AL., PLAINTIFFS,
v.
ALEJANDRO MAYORKAS, DIRECTOR OF THE BUREAU OF CITIZENSHIP AND IMMIGRATION SERVICES, ET AL.,*FN1 DEFENDANTS.



The opinion of the court was delivered by: Anita B. Brody, J.

MEMORANDUM

Plaintiffs Mohammed*fn2 and Arshia Uddin, husband and wife, bring suit against Defendants Alejandro Mayorkas, Director of U.S. Citizenship and Immigration Services ("USCIS"),*fn3 Perry Rhew, Director of the Administrative Appeals Office of USCIS, and Tony Dyson, Director of the Philadelphia Office of USCIS (collectively, "the Government"). The Uddins seek judicial review, pursuant to the Administrative Procedures Act, 5 U.S.C. §§ 701-06, of the Government's denial of their applications for adjustment of status to lawful permanent resident.*fn4 The Uddins allege that the Government unlawfully considered information furnished pursuant to Mr. Uddin's Special Agricultural Worker ("SAW") application as grounds for denying his adjustment of status application.*fn5 Currently pending before me are the parties' cross-motions for summary judgment.*fn6 For the reasons set forth below, I will grant Defendants' motion for summary judgment.

I. BACKGROUND

1. Introduction

Mohammed and Arshia Uddin are natives and citizens of Pakistan. Mr. Uddin originally entered the United States in 1984. Certified Administrative Record of Mohammed Uddin ("CAR-MU") at 24, ¶ 1. Mrs. Uddin came to the United States on April 7, 1991 as a B-2 nonimmigrant visitor admitted for a period of six months. Certified Administrative Record of Arshia Uddin ("CAR-AU") at 164. The Uddins are currently living in the United States without lawful immigration status. They are seeking protection from removal through Mr. Uddin's employment-based application for adjustment of status to lawful permanent resident. Because Mrs. Uddin's application is derivative of Mr. Uddin's, the focus will be on Mr. Uddin's immigration history.

2. Events Related to Mr. Uddin's Filing of His I-485 Adjustment Application

On May 2, 1997, Mr. Uddin was ordered removed in absentia. CAR-MU at 247. Mr. Uddin successfully appealed the removal order to the Board of Immigration Appeals, and his case was remanded to the immigration court for further proceedings. Id. The immigration court vacated the removal order and reopened removal proceedings. Id. at 281. On November 27, 1998, Mr. Uddin's employer, Jembro Stores, Inc. ("Jembro") filed a I-140 Immigration Petition for Alien Worker*fn7 on behalf of Mr. Uddin. Id. at 245. Mr. Uddin's I-140 petition was approved, and on April 9, 2001, the court terminated Mr. Uddin's removal proceeding. Id. at 186. Shortly after termination of his removal proceedings, Mr. Uddin filed an employment-based I-485 Application to Adjust Status to permanent residency,*fn8 pursuant to 8 U.S.C. § 1255(a).*fn9 Id at 170.

Mrs. Uddin also filed an adjustment application as a derivative of her husband's pending application.

3. Mr. Uddin's I-485 Adjustment Application and the Initial Denial of his Application In his adjustment application based on his employment as a manager at Jembro, Mr. Uddin indicated on his Biographic Information form that he had been employed at Jembro since 1984. Id. at 188. In addition to his application, Mr. Uddin submitted a copy of his Pakistani passport. See id. at 194-206. Stamps on the passport denoted that Mr. Uddin had applied for benefits under the Special Agricultural Worker ("SAW") amnesty program. Id. This program was established by Congress in the Immigration Reform and Control Act of 1986, see U.S.C. § 1160, to provide alien farmworkers with lawful temporary residence status and eventually lawful permanent residence. McNary v. Haitian Refugee Ctr., Inc., 498 U.S. 479, 483 (1991). Specifically, the passport stamps indicated that Mr. Uddin had received an I-688A employment authorization card, a card that was only issued to SAW applicants, and that he had re-entered the United States on three occasions under authorization of the SAW program.*fn10 CAR-MU at 194-206.

On March 14, 2005, the Uddins were interviewed regarding their adjustment applications. Id. at 166. During the interview, the District Adjudication Officer ("DAO") asked Mr. Uddin about his employment. Id. at 166, 411. Mr. Uddin informed the DAO that he had been working at Jembro since his arrival in 1984 and had never worked anywhere else in the United States. Id. at 166; 411-13. Mr. Uddin's attorney asked the Supervisory Adjudication Officer ("SAO") why Mr. Uddin was being questioned about his work history. Id. at 413. The SAO "pointed out that [Mr. Uddin's] testimony regarding his work history in the USA ruled out the possibility that he was ever a class member for SAW eligibility."*fn11 Id. Mr. Uddin's attorney agreed that Mr. Uddin "was not a class member, but insisted that nothing relating to the SAW application could be used" in determining Mr. Uddin's adjustment application. Id. The attorney was told that no one had looked at Mr. Uddin's SAW application or SAW file, which was housed at a different location. Id. at 166, 413. The attorney alleged that Mr. Uddin did not know what was claimed on the SAW application. Id. at 166. However, he "was reminded that the established procedure for the SAW Program included an interview where the applicant, with translator if necessary, would declare the basis for his claim for class membership in the SAW Program." Id.

On August 29, 2005, USCIS denied Mr. Uddin's adjustment application.*fn12 Id. USCIS determined that Mr. Uddin's testimony that he had never worked anywhere other than Jembro established that he was not eligible for the SAW program. Id. at 167 USCIS further determined that the SAW stamps in Mr. Uddin's passport were evidence that he had submitted a fraudulent SAW application, and fraudulently obtained a temporary employment card and travel authorization under the SAW program. Id. As a result, USCIS concluded that 8 U.S.C. § 1182(a)(6)(C)(i) rendered Mr. Uddin statutorily ineligible for adjustment of status. Id. Under § 1182(a)(6)(C)(i), "Any alien who, by fraud or willfully misrepresenting a material fact, seeks to procure (or has sought to procure or has procured) a visa, other documentation, or admission into the United States or other benefit provided under this chapter is inadmissible."

4. Mr. Uddin's Motion for Reconsideration, the Notice of Intent to Deny, and his Response On February 5, 2007, USCIS granted Mr. Uddin's motion for reconsideration of the denial of his adjustment application. Upon reconsideration, USCIS issued a Notice of Intent to Deny ("NOID") Mr. Uddin's application. Id. at 97. In the NOID, USCIS explained that Mr. Uddin's testimony that he had never worked anywhere other than Jembro conflicted with the evidence that he had been a member of the SAW program. Id. at 98. USCIS indicated that these contradictory facts suggested that Mr. Uddin "may have sought to obtain adjustment of status in the United States by fraud or willful misrepresentation of a material fact, either in connection with [his] SAW application or [his] current application for adjustment of status." Id. at 99. Accordingly, USCIS intended to deny Mr. Uddin's adjustment application because such fraud or willful misrepresentation would render him inadmissible pursuant to 8 U.S.C. § 1182(a)(6)(C)(i). Id.

In response to the NOID, Mr. Uddin reiterated "his objection to the CIS investigation of this matter and its continuing use of information garnered from the Applicant's SAW application," and submitted additional information verifying and explaining his SAW application. Id. at 21-96. Mr. Uddin's submissions included the following SAW related documents: (1) an affidavit; (2) copies of his three Employment Authorization Cards; (3) a copy of his passport with the SAW stamps; (4) a copy of the decision denying him SAW status; and (5) a copy of his appeal of his denial of SAW status. Id. at 21-22. Mr. Uddin's submissions revealed that he applied for the SAW program on December 29, 1987, and his application was denied on April 18, 1990. Id. at 36-39. The denial decision indicated that Mr. Uddin's SAW application was supported by the affidavit of a farm owner who had pled guilty to supplying fraudulent SAW affidavits, and that Mr. Uddin was not on a list of individuals employed at the farm during the time he claimed to work there. Id. at 37-38. Accordingly, USCIS denied his SAW application because he failed to prove that he had performed qualifying agricultural work for the requisite number of days. Id. at 39. Mr. Uddin appealed the denial of his SAW application and maintained that he had worked on a farm "between August and July of 1985," but did not have any further documentation to support his contention. Id. at 35. The record does not indicate what became of Mr. Uddin's appeal of the denial of his SAW application; however, Mr. Uddin explained that he stopped pursuing his SAW application and using the benefits of the SAW program later in 1991 when he "came to the realization that it [was] wrong." Id. at 26.

In his affidavit, Mr. Uddin swore that he "never knew at the time these papers or the appeal was being prepared that it was wrong to file them." Id. at 25. Mr. Uddin explained that when he applied for SAW, he barely spoke any English and did not know he was filing a "legal application" because an individual named Zafar Khan filed the application on his behalf and did most of the talking to the immigration officer during his interview. Id. at 24. Additionally, Mr. Uddin stated that Mr. Khan did not explain that the application "had any connection to claiming agricultural work." Id. Mr. Uddin also stated that, following the denial of his application, he met with a lawyer for about an hour before he decided to file an appeal. Id. at 25. He then chose to file an appeal because "[o]ther people in [his] community told [him] it was ...


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